183 Ga. 559 | Ga. | 1936
An execution based on a judgment ‘rendered in a suit upon certain promissory notes was levied upon described land as the property of Mrs. Kate Betton. A claim was interposed by S. D. Betton, James H. Betton, J. E. Betton, and Mary P. Betton, children of the defendant. A verdict was returned, finding the property subject. James II. Betton and Mary Betton made a motion for new trial, which was overruled, and they excepted.
The claimants, relying on the right to attack the execution upon any ground that would be available to -the defendant- in
Ground 8 of the motion for a new trial complains of ruling out testimony of the defendant in execution: “I don’t know the first time I knew that a fi. fa. was issued against me in favor of Mr. Avery. I got a letter from Mr. Cowart, that he was going to enter suit, but I did not know the suit had been entered until they saw the land advertisement and my aunt told me, and I did not know I had been sued at all until my aunt told me; and I did not go to the city court in 1932, and file a plea, and I did not know that the case was in court.” The ground of objection to the evidence was “that the claimants can not contradict the entry of service by the sheriff without filing a traverse and making the sheriff a party.” The effect of the testimony tended to impeach the officer’s return of service, and it was properly excluded. Albritton v. Tygart, 134 Ga. 485 (68 S. E. 79). See Elder v. Cozart, 59 Ga. 199 (3); Sanford v. Bates, 99 Ga. 145 (25 S. E. 35).
Ground 9 complains of a refusal to allow the defendant in
Although a person be solvent, “ still if, by a voluntary conveyance, he should deprive himself of all property which would be subject to legal process, such conveyance, as to creditors, would be prima facie fraudulent, and it would be incumbent on the grantee to show, not only that the grantor was solvent, but that the conveyance was made in good faith, and not with the intention to hinder, delay, or defraud his creditors.” Cohen v. Parish, 100 Ga. 335, 339 (38 S. E. 123); Cothran v. Forsyth, 68 Ga. 560, 567. “Transactions between husband and wife and near relatives, to the prejudice of creditors, are to be closely scanned and their bona tides clearly established.” Gray v. Collins, 139 Ga. 776, 780 (78 S. E. 127). The first and second special grounds of the motion for a new trial complain of excerpts from the charge to the jury, stating, as applicable to the case, that every conveyance of real estate or personalty by writing or otherwise, if made with the intention to delay or defraud creditors and such intention known to the party taking, is void as against such creditors. The criticism is that the charge was unauthorized by the pleadings and evidence, and specifically in that there was no evidence to show that claimants had knowledge of intention of the grantor to make the deed for the purpose of preventing collection of plaintiff’s debt. Notice to the claimants of such intention on the part of the grantor may be shown by circumstantial evidence as well as direct evidence. Smith v. Wellborn, 75 Ga. 799. In passing upon this question of notice, the jury could take into consideration the relation of parent'and children between the grantor and grantees, the fact that the children were living with the parent on the property at the time the suit was filed and served by leaving a copy of the petition and process at the defendant’s place of abode before the date of the deed, that the grantor remained in possession after execution of the deed, and withheld it from record until December
Error is assigned upon the following excerpt from the charge: “The law also says that every voluntary deed or conveyance not for a valuable consideration, made by a debtor insolvent at the time of such conveyance, or if by making such conveyance he renders himself insolvent, such conveyance is void as against the creditor of such debtor.” This charge was not erroneous, as contended, on the ground that it was not authorized by the pleadings and the evidence, or that the deed would not be void unless such voluntary deed was made with the intention to delay or defraud creditors and such intention known to the parties taking.
The court charged the juiy, as complained in grounds 4, 5, 6, and 7 of the motion for a new trial: (a) “I charge you, if you believe from the evidence in this ease that the deed from Mrs. Kate Betton to the claimants was made without anything being paid to Mrs. Betton, and that by making such deed she thereby rendered herself insolvent, made herself unable to pay her debts, then such deed would be void as against her creditor, T. Q-. Avery.” (b) “I charge you, gentlemen, that delivery of a deed by the grantor to the grantee, either actual or constructive, is necessary in order to transmit title to the property sought to be conveyed; and if you believe from the evidence in this case that the deed made by Mrs. Kate Betton was never delivered to the claimants, then it would not operate to pass title to the claimants to the property levied upon, and the same would be subject to' the
The evidence was sufficient to support the verdict, and there was no error in refusing a new trial.
Judgment affirmed.